Doe v. Burke

133 A.3d 569

John DOE No. 1, Appellant,

v.Susan L. BURKE, Appellee.

No. 15–CV–690.

District of Columbia Court of Appeals.

Argued Jan. 14, 2016.

Decided March 10, 2016.

Michael E. Rosman, Washington, DC, with whom Christopher J. Hajec was on the brief, for appellant.

William T. O'Neil, Bethesda, MD, for appellee.

Arthur B. Spitzer, American Civil Liberties Union of the Nation's Capital, and Bruce D. Brown and Gregg P. Leslie, The Reporters Committee for Freedom of the Press, filed a brief amicus curiae on behalf of appellant.

Before EASTERLY and McLEESE, Associate Judges, and FARRELL, Senior Judge.

FARRELL, Senior Judge:

May an anonymous civil defendant who files and prevails on a special motion to quash a subpoena for identifying information under D.C.Code § 16–5503 (2012 Repl.), part of the District's Anti–SLAPP Act (the Act), be awarded attorney's fees under D.C.Code § 16–5504(a) without showing that the suit prompting the subpoena was frivolous or improperly motivated? We answer that question yes. We further hold, after considering the language and legislative history of the Act, that a successful movant under § 16–5503 is entitled to reasonable attorney's fees in the ordinary course—i.e., presumptively—unless special circumstances in the case make a fee award unjust. Because no such circumstances exist on the record of this case, we reverse the order of the trial court denying altogether the defendant/movant's request for attorney's fees, and remand the case solely for the court to consider the reasonableness of the amount of fees requested.

I.

A.

The Anti–SLAPP Act, as explained in our earlier opinion, Doe No. 1 v. Burke, 91 A.3d 1031 (D.C.2014) (Doe I ), was enacted by the D.C. Council to "protect the targets of ... suits" intended "as a weapon to chill or silence speech." Id. at 1033.¹ One way the Act does so, "recognizing the importance of anonymous speech on matters of public interest," id. at 1036, is to enable an individual " ‘whose personal identifying information is sought’ to safeguard his identity by filing a ‘special motion to quash’ a subpoena," id. (quoting D.C.Code § 16–5503(a) ), and, if successful, "avoid being named in a suit and served with a complaint." Id. To succeed on a special motion to quash,

the moving party must "make[ ] a prima facie showing that the underlying claim arises from an act in furtherance of the right of advocacy on issues of public interest." D.C.Code § 16–5502(b) ; see also D.C.Code § 16–5503(b). Upon such a showing, the motion will be granted unless the opposing party demonstrates a likelihood of success on the merits of his or her underlying claim. Id.

Doe I, 91 A.3d at 1036 (brackets in original). ²

In this case, appellee Susan L. Burke, an attorney, sued multiple anonymous defendants ("John Does 1–10") alleging defamation and other torts arising from edits made to a Wikipedia webpage established in Ms. Burke's name. John Doe 1 had allegedly added information to the page using the name Zujua. After Ms. Burke caused a subpoena to be issued to obtain Wikipedia's user data and thereby learn Zujua's (and others') identity, Zujua filed a special motion to quash the subpoena. The trial court denied the motion, but this court reversed. We held as a matter of law that Zujua had shown "that his speech is of the sort that the statute is designed to protect," id. at 1036, 1043–44,³ and that Ms. Burke, who was thus "required to show malice on Zujua's part ... to succeed" in rebuttal, had failed to show a "likelihood of success on [her] underlying claims." Id. at 1045.

B.

On remand, Zujua moved to be awarded attorney's fees under D.C.Code § 16–5504(a), which provides that "[t]he court may award a moving party who prevails, in whole or in part, on a motion brought under ... § 16–5503 the costs of litigation, including reasonable attorney fees." In response, attorney Burke argued mainly that the trial court in its discretion ("[t]he court may award ... attorney fees") should award no fees in the circumstances of the case. The trial judge agreed and denied the fee request entirely.⁴ He concluded first that attorney's fees were unjustified because Ms. Burke had not filed "a classic SLAPP suit" against Zujua, one "within the meaning of the D.C. [Anti–SLAPP] statute." Citing legislative history corresponding to this court's recognition in Doe I that SLAPP suits "masquerade as ordinary lawsuits" but in reality are used "as a weapon to chill or silence speech," Doe I, 91 A.3d at 1033 (citation and internal quotation marks omitted), the judge found the plaintiff's suit to have none of the earmarks of such an action: It "was not based on flimsy speculation and was not intended to inflict costly litigation fees ... as a means to stifle speech"; it could "hardly be seen as frivolous" because it "set forth a plausible argument" for believing that Zujua had acted maliciously; and "it is not unreasonable to surmise that plaintiff filed what she believed to be a meritorious suit to recover for the harm caused by the false statements made via anonymous Wikipedia edits."

The judge reasoned further that, "even if an action is construed as a SLAPP suit, attorneys' fees and costs are not automatic and may be recovered only upon a showing that a frivolous claim has been made against defendants." Exercising the discretion he understood to be afforded him by the fee provision's "permissive language," he determined that because the plaintiff's suit, although unsuccessful, had not been filed "with [the] intent to inflict costly litigation fees, bring a frivolous suit, or ... stifle speech," attorney's fees were unjustified in light of "the equities" of the case, "the aims of the D.C. Anti–SLAPP Act and the purpose for awarding fees," and the findings of merit (or non-frivolousness) and proper motivation the court had made regarding the underlying suit.⁵

II.

A.

For the trial judge, it is apparent, "a moving party who prevails" on a motion to quash under § 16–5504 may not be awarded attorney's fees, presumptively or otherwise, without consideration by the court of the merits of, and motive behind, the underlying lawsuit. Only if the suit, besides having failed the test of § 16–5503(b) ("likely to succeed on the merits"), has been determined to be frivolous or intended to stifle speech by causing undue litigation costs is it one within the "meaning" of the Act—a "classic SLAPP suit"—so as to justify the statutory shift of the obligation to pay costs including attorney's fees to the plaintiff.

The threshold defect in this statutory reading is that nowhere does the Act refer to or define a "classic" SLAPP suit, as distinct from one against which the defendant may invoke the statute's protections after a threshold prima facie showing. As explained above, the burden of maintaining the suit shifts to the plaintiff once the defendant has made "a prima facie showing that the underlying claim arises from an act in furtherance of the right of advocacy on issues of public interest...." D.C.Code § 16–5503(b). A "claim" is defined as "any civil lawsuit, claim, complaint, cause of action ... or other civil judicial pleading...." Id. § 16–5501(a) (emphasis added). Nothing in this language, or in the words of the attorney's fee provision, § 16–5504(a), implies that to qualify for fees the anonymous defendant successful in quashing a subpoena must have resisted a SLAPP claim "classic" or exemplary in nature, rather than one arising—solely but pivotally—from the defendant's exercise of a special form of speech or advocacy. The protections of the Act, in short, apply to lawsuits which the D.C. Council has deemed to be SLAPPs, and this court's ruling in Doe I that Zujua was entitled to those protections settled the question of whether attorney Burke's suit fit within the statutory meaning.

More important, however, than this illusory distinction the trial judge saw between "classic" SLAPP suits and others is that the Act, by its terms, impliedly but clearly rejects the additional showing of frivolousness or wrongful motivation the judge required before a party who files a special motion to quash and prevails may recover attorney's fees. The costs provision, D.C.Code § 16–5504, provides in full:

(a) The court may award a moving party who prevails, in whole or in part, on a motion brought under § 16–5502^[6] or § 16–5503 the costs of litigation, including reasonable attorney fees.

(b) The court may award reasonable attorney fees and costs to the responding party only if the court finds that a motion brought under § 16–5502 or § 16–5503 is frivolous or is solely intended to cause unnecessary delay.

The distinction could hardly be clearer between when, to qualify for attorney's fees, a party must show frivolousness or improper motive in the opponent's action, and when not. Unlike the "moving party who prevails ... on a motion," "the responding party"—the original plaintiff—may be awarded fees only if the court finds a complete lack of merit or improper motivation in the special motion to quash. This distinction between what the Council required in one of two companion provisions but not the other must be assumed to be deliberate:

When the legislature uses a term or phrase in one ... provision but excludes it from another, courts do not imply an intent to include the missing term in [the] ... provision where the term or phrase is excluded. Instead, omission of the same provision from a similar section is significant to show different legislative intent for the two sections.

2A NORMAN SINGER & SHAMBIE SINGER, Sutherland Statutes and Statutory Construction § 46.6 (7th ed.2015). In the same vein, the Supreme Court has stated:

"[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion".... Had Congress intended to restrict [the subsection in question to a particularly meaning],

...